How Michael Flynn’s Defense Team Found Powerful Allies

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WASHINGTON — Sidney Powell, a firebrand lawyer whose pugnacious Fox News appearances had earned her numerous private phone conversations with President Trump, sent a letter last year to Attorney General William P. Barr about her soon-to-be new client, Michael T. Flynn.

Asking for “utmost confidentiality,” Ms. Powell told Mr. Barr that the case against Mr. Flynn, the president’s former national security adviser who had pleaded guilty to lying to the F.B.I., smacked of “corruption of our beloved government institutions for what appears to be political purposes.” She asked the attorney general to appoint an outsider to review the case, confident that such scrutiny would justify ending it.

Mr. Barr did what she wanted. He appointed a U.S. attorney six months later to scour the Flynn case file with a skeptical eye for documents that could be turned over as helpful to the defense. Ultimately, Mr. Barr directed the department to drop the charge, one of his numerous steps undercutting the work of the Russia investigation and the special counsel, Robert S. Mueller III.

The private correspondence between Ms. Powell and Mr. Barr, disclosed in a little-noticed court filing last fall, was the first step toward a once-obscure lawyer and a powerful attorney general finding common cause in a battle to dismantle the legacy of the investigations into President Trump and his allies.

Ms. Powell’s slash-and-burn approach — accusing the federal law enforcement machinery of concocting a case against her client — failed in the courtroom last year when a judge rejected her claims. But the same strategy, which she amplified in frequent media appearances, succeeded in turning Mr. Flynn’s case into a cause for Mr. Trump’s supporters and in securing the review ordered by Mr. Barr that provided her with fresh ammunition.

Mr. Barr’s subsequent decision to drop the charge against Mr. Flynn threw the Justice Department into turmoil and set up a high-stakes battle pitting the attorney general and Ms. Powell against the trial judge, Emmet G. Sullivan, who opened a review of the move.

Ms. Powell and her client won a significant victory on Wednesday when a divided appeals court panel — in a surprise ruling written by Judge Neomi Rao, a former White House official whom Mr. Trump appointed to the bench — ordered Judge Sullivan to drop the case without scrutiny. Judge Sullivan suspended his review but has not dismissed the charge, suggesting that the extraordinary legal and political saga is not yet over.

Ms. Powell declined to discuss her conversations with the White House or her correspondence with Mr. Barr. But she said in an email that she had long considered “prosecutorial misconduct and overreach” a problem and that she viewed Mr. Flynn as a victim of it.

At its core, Mr. Flynn’s case is a drama about who gets to mete out justice in the Trump era, upending the prosecution of a man who twice had admitted guilt.

“It’s hard to think of anything remotely like this,” said David Alan Sklansky, a Stanford University law professor and former federal prosecutor. “The Justice Department has taken somebody who has twice pleaded guilty, in a case where the trial judge has considered and already rejected claims of government wrongdoing, and prosecutors now say we’d like to dismiss the case and don’t think it should have been brought in the first place.”

A Tough-Minded Judge

When Mr. Flynn stood in Judge Sullivan’s courtroom on Dec. 18, 2018, his legal odyssey appeared to be over. He had struck a favorable deal with Mr. Mueller’s prosecutors to cooperate after admitting to lying to F.B.I. agents about conversations with the Russian ambassador in late 2016. In exchange, prosecutors were recommending he receive no prison time and not be prosecuted for separate offenses related to his lobbying for Turkish government without registering as an agent of a foreign power.

But he did not go quietly. His defense team, in a memo laying out what sentence he should receive, also floated the notion that Mr. Flynn had been set up. F.B.I. agents had used several different tactics to essentially trick Mr. Flynn, a retired Army three-star general, into making false statements, the memo suggested.

The Flynn defense team was trying to have it both ways, and Judge Sullivan was furious. He grilled Mr. Flynn about whether he was truly taking responsibility for his crimes and even suggested — before retracting the notion — that Mr. Flynn had been a traitor to his country. When it appeared that Judge Sullivan might send Mr. Flynn to prison, going beyond the original recommendation of prosecutors, Mr. Flynn and his lawyer, Robert K. Kelner, decided to postpone the sentencing so he could continue to cooperate with prosecutors.

Judge Sullivan, appointed to the Federal District Court by President Bill Clinton, has a reputation as a hard-nosed jurist with a disdain for prosecutorial misconduct. He is known for taking guilty pleas seriously, and he reminded Mr. Kelner that he had never accepted one from someone who maintained he was not guilty and that he didn’t “intend to start today.”

In his legal pivot, Mr. Flynn had channeled the campaign led by Mr. Trump and his allies that had portrayed the Russia investigation as a “witch hunt” and a plot to sabotage his presidency. Since Mr. Flynn had first pleaded guilty in 2017, Republicans in Congress had taken up a campaign to undermine the case against him and portray him as a victim of overzealous prosecutors.

Some legal experts speculated at the time that Mr. Flynn was accepting guilt to pocket a sentence without prison time while also preserving the possibility that Mr. Trump might pardon him. His legal strategy would, soon enough, become even more radical: that he was innocent all along.

Flynn’s New Defense

One of Mr. Flynn’s most vocal defenders was Ms. Powell, a Texas-based former federal prosecutor who had made no secret about her view that the Russia investigation was a sham.

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